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Theoretical background

Challenges and Perspectives

Vassilis Pergantis

Chapter 1 presents the theoretical premises upon which the book is based. It invokes and exploits critical theory by focusing on the binary constructions permeating the law of treaties discourse, such as the tension between individualism and collective interest, the juxtapositions between esoteric and manifested intent and the oscillation between the negotium and the instrumentum. The delineation of the theoretical framework and the discursive techniques employed allows the showcasing of both the binary and transformational characters of those tensions, as well as how they shape the discussion on challenges to the treaty concept and the paradigm of state consent in the cases discussed further down in the book. Keywords: individualism; communitarianism; formalism; negotium; instrumentum; State consent; critical approach

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Setting the scene

The Case of Individual Victims of Human Rights Violations

Pierre Schmitt

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Bernardo Sordi

This chapter reflects on the history of administrative law against the background of the emergence and evolution of a distinct form of administrative power within the European state over the last two and half centuries. The chapter outlines, in a very general way, answers to several comparative questions: in what ways have the various paths to droit administratif in France, or Verwaltungsrecht in Germany, converged or diverged from the path to administrative law in England (and later America)? Similarly, how have the German or French paths to the Rechtsstaat or the État de droit, respectively, converged or diverged from the Anglo-American path to the Rule of Law? This contribution proceeds on the premise that the particular routes to droit administratif, Verwaltungsrecht, or administrative law must be understood with at least some sensitivity to the various processes of state-formation as well as to the different constitutional histories of the countries concerned. Nevertheless, it would be an error to believe that a comparison of state-building processes could mechanistically provide a clear scale for measuring the intensity of the processes by which a distinct law of administration took shape. The history of state-formation in the various corners of Europe proceeded not merely according to its own specific tempos but also on a different factual level from that of the conceptual and legal representation, which is in fact the focus of our discussion. Thus, it must be stressed that the divergences and convergences we propose to trace are limited to representations within legal orders, and do not extend to the underlying history of state power per se. The analysis confines itself to explaining the different techniques of conceptualization employed at different times and in different national contexts in relation to the identification and execution of public tasks understood as specifically belonging to the administrative sphere. Our aim here is simply to define the different juridical articulations within which the institutional enterprises definable as states emerged historically. A second premise, which is of a chronological nature, flows from the first. The conscious emergence of a power, tasks, or law considered as ‘administrative’ is a relatively recent phenomenon, something reflected in the historical development of languages, lexicons, and concepts. In France, for example, the terms administration publique and bureaucratie did not become widely used before 1750, and droit administratif did not make its first appearance until the early years of the nineteenth century. Moreover, Verwaltungsrecht in Germany, or administrative law in the English-speaking world, did not appear until well into the nineteenth century (and in the English case arguably only came into wide usage in the twentieth). We must therefore be aware that the question of administrative power or administrative law has its own history, which is not necessarily coterminous with history of forms of public authority. Rather, the emergence of a specifically ‘administrative’ power or law is intrinsically a modern phenomenon, dating back no more than 200 years or so. Thus, the questions this chapter seeks to answer only make sense for the past two centuries: for the nineteenth century, in which an identifiably ‘administrative’ space, as well as corresponding understandings of ‘administrative’ power and law, emerged; and for the twentieth century, in which the vast expansion of ‘administrative’ personnel, responsibilities, organizations, and establishments (including, perhaps most importantly, the diffusion of public services and of social administration) became an inescapable feature of modern governance. It is precisely in this time span that the divergences and convergences between the different paths of state-formation become noticeable and measurable.

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Edited by W. J. Morgan, Qing Gu and Fengliang Li

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Preface

Institutions, Public Administration and Transnational Space

Edited by Jarle Trondal

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Preface

Carbon Taxes, Energy Subsidies and Smart Instrument Mixes

Edited by Stefan E. Weishaar, Larry Kreiser, Janet E. Milne, Hope Ashiabor and Michael Mehling

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Muchu Zhang and Ruth Hayhoe

The chapter provides a detailed historical analysis of the cultural and global influences on the modernization of China’s basic education, higher education and teacher education. It concludes that Chinese education has grown from its cultural roots, and should explain the educational dimensions of the Confucian heritage to a world that has become increasingly interested in its language, culture and society.

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Georg Krücken, Renate E. Meyer and Peter Walgenbach

In the introduction to the volume, Georg Krücken, Renate Meyer and Peter Walgenbach sketch the origins and the development of the European network of scholars interested in new institutionalism. Further, they provide an overview of the content of the volume at hand.

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Richard Hawkins and Knut Blind

This introduction explores the conceptual background and definitions that pertain to understanding standards and standardization in the context of innovation. A general overview is provided of the themes explored in the chapters that follow.

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Noemi Lendvai-Bainton and Patricia Kennett